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Nineteenth-Century Perceptions of John Austin: Utilitarianism and the Reviews of The Province of Jurisprudence Determined

Published online by Cambridge University Press:  26 January 2009

Extract

In 1954 H. L. A. Hart wrote that Austin's work has ‘never, since his death … been ignored’. If it never has been completely ignored, interest in it has periodically waxed and waned. The interest definitely waxed in the 1980s. More books were published about Austin in this period than in any other decade since his death in 1859. Although this literature contains discussions of some of the nineteenth-century responses to his work, they are not the focus of it. Certain of the responses remain completely in the dark, while there is more light to shed on at least some of the others. In short, our knowledge of nineteenth-century interpretations of Austin's legal philosophy is very incomplete.

Type
Research Article
Copyright
Copyright © Cambridge University Press 1991

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References

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11 North American Review, c (1865), 251Google Scholar. Another reviewer also pointed out that Austin, 's ‘discussion of the theory of utility … fills too large a space for the symmetry and compactness of the book’ (London Quarterly Review, cx [1861], 72).Google Scholar

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23 See PJD (1832), p. xx.Google Scholar

24 Ibid., pp. xix–xx.

25 See Hart, note 1 above.

26 For examples, see Frederic Harrison, ibid., pp. 432–3; Dicey, A. V., ‘The Study of Jurisprudence’, Law Magazine and Review, v (1880), 388–9; and Frederick Pollock, Essays in Jurisprudence and Ethics, London, 1882, p. 2.Google Scholar

27 PJD (1832), p. xx.Google Scholar

28 Ibid., pp. vii–viii.

29 Ibid., p. xi.

30 Ibid., p. xiii.

31 Ibid., p. xiv.

34 Ibid., p. xiv.

35 Lectures on Jurisprudence (1885), p. 16.Google Scholar

37 Schneewind, J. B., Sidgwick's Ethics and Victorian Moral Philosophy, Oxford, 1977, p. 153Google Scholar. My exposition of Austin's rule utilitarianism draws upon my previous discussion of it in The Thought of John Austin, pp. 67–9.Google Scholar

38 PJD (1832), p. 47.Google Scholar

39 Ibid., 49.

40 Ibid., 37.

41 Ibid., 47.

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43 Smart, J. J. C., ‘Extreme and Restricted Utilitarianism’, in Contemporary Utilitarianism, ed. Bayles, Michael D., Garden City, N.Y., 1968, p. 107.Google Scholar

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46 PJD (1832), 54.CrossRefGoogle Scholar

48 Ibid., 298n.

49 Ibid. It is problematic whether Hobbes actually held the views that Austin attributed to him. See Hobbes, Thomas, Leviathan: Or the Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil, ed. Oakeshott, Michael, New York, 1962, pp. 110, 163–5.Google Scholar

50 PJD (1832), 54–5.CrossRefGoogle Scholar

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52 PJD (1832), 55Google Scholar. Austin did unequivocally reject the doctrine of tyrannicide as ‘highly pernicious’ (Lectures on Jurisprudence (1885), 161)Google Scholar. His rejection of it was not included, however, in the first edition of the PJD (1832).Google Scholar

53 PJD (1832), 60.Google Scholar

54 ‘A Note on Austin's “Province of Jurisprudence Determined”’, The Adventurer; or London University Magazine, ii (1833)Google Scholar, [hereinafter cited as ‘A Note’,] 137–43.Google Scholar

55 Ibid., 139.

56 PJD (1832), 38.Google Scholar

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58 Ibid., 140.

60 Ibid., 142.

61 For an interesting brief criticism of the theories of resistance expressed by both Austin and ‘A Note’, see the Westminster Review, xviii (1833), 329–32Google Scholar. According to Colonel Thomas Perronet Thompson, ‘resistance to bad government is the moral duty, whenever the probable advantages of success are greater than the probable suffering from opposition. It is in fact the case of resistance to any kind of robbery and mischief’ (ibid., 332).

62 See, for example, Law Magazine and Review, x (1861), 241–2Google Scholar, and The Athenaeum, 4 05 1861, p. 593.Google Scholar

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64 PJD (1832), p. 32.Google Scholar

66 Ibid., p. 41.

66 Ibid., p. 36.

67 The Solicitors' Journal and Reporter, v (1861), 459.Google Scholar

70 Ibid., 460.

71 Ibid., 459–60.

72 PJD (1832), 63.Google Scholar

73 For discussion of Austin's religious views, see Lotte, and Hamburger, Joseph, Troubled Lives, pp. 41–2, 170–1CrossRefGoogle Scholar; Rumble, , The Thought of John Austin, p. 234, 26nGoogle Scholar; and Orth, John V., ‘Casting the Priests Out of the Temple: John Austin and the Relation between Law and Religion’, in The Weightier Matters of the Law: Essays in Law and Religion—A Tribute to Harold J. Berman, ed. John Witte, Jr., and Frank S. Alexander, 1988, pp. 230–49.Google Scholar

74 Statement by the Council of the University of London, London, 1827, p. 8.Google Scholar

75 For justification of these policies, see ibid., pp. 12–13. For criticisms of them, see, inter alia, Quarterly Review, xxxiii (18251826), 257–75Google Scholar; Quarterly Review, xxxix (1829), 126–35Google Scholar; Christianus, , A Letter to the Rt. Hon. Robert Peel, on the Subject of London University, London, 1828Google Scholar Rev. Newland, Henry, Thoughts on the London University, Dublin, 1828Google Scholar; and ‘Modern Systems of Instruction’, British Critic, i (1827), 190211Google Scholar. For discussion of both the policies of the University and the criticisms of them, see Bellot, H. Hale, University College London: 1826–1926, London, 1929.Google Scholar

76 As quoted by Harte, Negley, The University of London 1836–1986: An Illustrated History, London, 1986, p. 64.Google Scholar

77 Lancaster, T. W., The Alliance of Education and Civil Government: with Strictures on the University of London, London, 1828Google Scholar, [hereinafter cited as The Alliance,] p. 75.Google Scholar

78 Ibid., pp. 10, 12.

79 Ibid., p. 80.

80 ‘Jurisprudence’, in Second Statement by the Council of the University of London Explanatory of the Plan of Instruction, London, 1828, p. 93.Google Scholar

83 Lancaster, , The Alliance, p. 74.Google Scholar

84 Ibid., p. 75.

86 The Times, 9 08 1832 (emphasis added).Google Scholar

87 For Paley's ideas, see The Works of William Paley, D, D., London, 1837, vols. 1 and 2.Google Scholar, and LeMahieu, D. L., The Mind of William Paley: A Philosopher and His Age, Lincoln, Neb., 1976.Google Scholar